AG: No crime in Chris Sununu sending letter to judge on friend's behalf

Friday

Mar 29, 2013 at 3:15 AMMar 29, 2013 at 10:03 AM

By Jim Haddadinjhaddadin@fosters.com

DOVER — The attorney general's office has determined Executive Councilor Chris Sununu did not violate any part of the state's criminal code by delivering a letter to a trial court judge on behalf of a friend facing jail time.

Earlier this year, Sununu penned a character reference letter in support of Patrick McDougall, a former Salem budget committee member who was recently convicted of a misdemeanor charge.

Before McDougall was sentenced on Jan. 15, Sununu wrote to Salem trial court Judge Michael Sullivan to ask him to consider McDougall's positive contributions to the community.

Sununu, of Newfields, is serving his second term as the state's District 3 executive councilor. In his letter to the judge he described McDougall's involvement with the local Republican committee, and recounted McDougall's reputation as a “civic leader in southern New Hampshire.”

While defendants often present character witnesses before they are sentenced, Sununu's letter was addressed — and delivered — directly to the judge. According to published reports, Sullivan expressed displeasure the following day in court about receiving the communication.

The attorney general's office was then asked to review the incident by the judicial system's general counsel, Howard Zibel, and a prosecutor from the Salem Police Department.

After gathering facts for several weeks, Attorney General Michael Delaney wrote in a March 1 letter that his office is dropping the matter, since the incident does not pose a violation of criminal code.

Documents describing the decision were obtained this week by Foster's Daily Democrat through a request made under the state's Right-to-Know law. The information was first requested by the New Hampshire Democratic Party.

“Based on our review of the facts and circumstances of this matter, there is no basis to conclude that Councilor Sununu violated any provision of the criminal code,” Delaney wrote in the letter. “Thus, we will be taking no further action.”

McDougall was convicted on Dec. 13, 2012, of interfering with emergency personnel who were trying to help his wife.

Two Salem firefighters were dispatched to McDougall's house in June when his wife called 911 for assistance while suffering from a migraine. As they attempted to render medical aid, McDougall intervened, despite his wife's desire to go to the hospital. McDougall also argued with police during the roughly 40-minute event, according to court documents.

McDougall, who previously served on Salem's zoning board and budget committee, was convicted of a single count of obstruction of government administration, a Class A misdemeanor.

The week before McDougall was scheduled to be sentenced, Sununu stopped by the Salem circuit court and handed a letter to the clerk addressed to Sullivan, who was presiding over the case.

In the letter, which was written on Executive Council letterhead, Sununu said he was writing to express his support for his friend, McDougall, and referred to him as an “upstanding member of the Salem, NH community.” Sununu recounted McDougall's time serving on municipal boards, and called him a “terrific father and husband.”

“I know your reputation as a fair judge and when considering Patrick's sentencing I hope you will reflect upon his many positive attributes and contributions to the community and work to find a sentence that is reasonable but does not cause his wife and family excessive harm or distress,” Sununu wrote.

Judge Sullivan then found the letter on his desk on Monday, Jan. 14. Sullivan says he stopped reading the message once it became clear it was a personal communication pertaining to McDougall's criminal case.

When the sentencing hearing began on Jan. 15, Sullivan expressed his distaste for receiving a communication outside the usual legal channels.

Both Zibel and Salem Police Department Prosecutor Jason Grosky then contacted the attorney general's office in late January regarding Sununu's letter.

Salem police requested an inquiry into whether the letter posed a violation of a state law regarding influencing public officials. The law bans anyone from trying to influence a judge's decision based on considerations “other than those authorized by law.”

Zibel called for any action deemed “appropriate” by the attorney general.

Sununu was interviewed by investigator Richard Tracy at the attorney general's office on Feb. 1, 2013. Sununu said he became acquainted with McDougall around 2008 through his position with the town of Salem, and through the Salem GOP, according to an audio transcript.

Sununu said McDougall approached him to ask for a character reference letter in connection with the Jan. 15 sentencing hearing. Sununu said he writes “a couple dozen” character references a year, though this was his first letter regarding a matter before the court.

“I didn't really, I didn't think about it too much in terms of where it was going and why it would matter,” Sununu said, “but ... this is the first one I had ever done.”

Sununu said it was McDougall who advised him to send the letter directly to the judge, and that he otherwise wouldn't have known where to direct the message.

“I don't know Judge Sullivan from a hole in the wall,” he said.

When he was interviewed by an investigator, the Salem police prosecutor said McDougall's defense attorney seemed genuinely surprised when the judge revealed he had been contacted by Sununu.

Grosky said the attorney, Neil Reardon, was planning to provide the judge with a copy of Sununu's letter during the sentencing hearing. Reardon said he was only provided with a copy of Sununu's letter earlier in the day by his client.

In addition to laws that fall under Title 62 of New Hampshire's statutes — the so-called "criminal code" — members of New Hampshire's executive branch are also governed by a separate set of ethics laws.

One such law — RSA 21-G: 23 — prevents members of the executive branch from using their positions to secure “governmental privileges or advantages” for others.

Some of these executive branch laws are referenced in the attorney general's report regarding Sununu. However, it's unclear whether the Office of Public Integrity made an attempt to evaluate Sununu's actions with regard to the executive branch laws.

The state's Executive Branch Ethics Committee has the responsibility of investigating all complaints against executive branch officials.

In 2007, the ethics committee was asked to study whether state law prohibits public officials from writing character reference letters on official department letterhead for people who don't work for the state.

In an advisory opinion, the committee determined the practice is permissible, but only if the public official knows the job seeker “by virtue of working with the individual in a government capacity.”

Further, the public official must be issuing the letter of recommendation as a “reasonable extension” of their official responsibilities, according to the law.

“As a general matter, issuing a letter of recommendation on agency letterhead is appropriate only if this is a type of letter that the public official/employee would normally write in the course of his or her work for the state,” the 2007 opinion reads.

Further, there must be “some connection between the public official/employee's official duties and the individual being recommended.” Permissible associations include working with someone on a joint committee or task force, or participating together with someone volunteering on a focus group.

Sununu did not return a call seeking comment this week on the attorney general's findings.

The first six pages of the investigation report provided to Foster's Daily Democrat are entirely redacted. In an accompanying letter, a paralegal at the attorney general's office wrote that the state was obligated by law to withhold portions of the file.

The redacted material includes law enforcement records that would constitute an unwarranted invasion of individual privacy if released publicly, according to the attorney general's office, as well as attorney notes, memorandums or draft correspondence.

After reviewing the report, Democratic Party Communications Director Harrell Kirstein said he was left troubled by Sununu's admission that he frequently writes reference letters. He said Sununu's “transgression” with regard to McDougall was laid bare in the report.

“Councilor Sununu needs to come clean about how and why he attempted to influence the criminal sentencing of one of his Republican political allies,” Kirstein wrote. “His troubling behavior raise serious questions about his ability to serve in public office and that is why we filed this right to know request.”